EXHIBIT 4.4
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of January 24, 1997
by and among
XXXXXX, FARGO & CO.,
LOOMIS HOLDING CORPORATION,
XXXXXX ARMORED INC.,
XXXXX FARGO ARMORED SERVICE CORPORATION OF TEXAS
XXXXX FARGO ARMORED SERVICE CORPORATION OF PUERTO RICO
and
XXXXXX BROTHERS INC.
and
NATIONSBANC CAPITAL MARKETS, INC.
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of January 24, 1997 by and among Xxxxxx, Fargo & Co., a Delaware
corporation (the "Issuer"), Loomis Holding Corporation ("LFC"), a Delaware
corporation (to be renamed LFC Holding Corporation), Xxxxxx Armored Inc. (the
"Operating Subsidiary"), a Texas corporation (to be renamed Xxxxxx, Fargo &
Co.), Xxxxx Fargo Armored Service Corporation of Texas ("WFT"), a Texas
corporation (to be renamed LFC Armored of Texas Inc.), and Xxxxx Fargo Armored
Service Corporation of Puerto Rico ("WFP"), a Tennessee corporation (to be
renamed Xxxxxx, Fargo & Co. of Puerto Rico), and together with LFC, the
Operating Subsidiary WFT and any other entity that delivers a Subsidiary
Guarantee pursuant to the terms of the Indenture, the "Guarantors"), and Xxxxxx
Brothers Inc. and NationsBanc Capital Markets, Inc. (collectively the "Initial
Purchasers"), which have agreed to purchase the Issuer's 10% Senior Subordinated
Notes due 2004 (the "Senior Subordinated Notes") pursuant to the Purchase
Agreement.
This Agreement is made pursuant to the Purchase Agreement, dated
January 17, 1997 (the "Purchase Agreement"), by and among the Issuer, LFC and
the Operating Subsidiary and the Initial Purchasers. In order to induce the
Initial Purchasers to purchase the Senior Subordinated Notes, the Issuer and the
Guarantors have agreed to provide to the Initial Purchasers and their respective
direct and indirect transferees the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 4 of the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under the
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Exchange Act.
Closing Date: The date of this Agreement.
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Commission: The Securities and Exchange Commission.
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Consummate: A registered Exchange Offer shall be deemed
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"Consummated" for purposes of this Agreement upon the occurrence of (i) the
filing and effectiveness under the Securities Act of the Exchange Offer
Registration Statement relating to the New Senior Subordinated Notes to be
issued in the Exchange Offer, (ii) the maintenance of such Registration
Statement continuously effective and the keeping of the Exchange Offer open
for a period not less than the minimum period required pursuant to Section
3(b) hereof, and (iii) the delivery by the Issuer to the Registrar under
the Indenture of New Senior Subordinated Notes, with Subsidiary Guarantees
thereon duly executed and delivered by the Guarantors, in the same
aggregate principal amount as the aggregate principal amount of Senior
Subordinated Notes that were tendered by Holders thereof pursuant to the
Exchange Offer.
Damages Payment Date: Each Interest Payment Date and, with
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respect to any Note being repurchased by the Company pursuant to Section
3.8 or 3.9 of the Indenture, the related Purchase Date.
Effectiveness Target Date: As defined in Section 5 hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: The registration by the Issuer under the
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Securities Act of the New Senior Subordinated Notes pursuant to a
Registration Statement pursuant to which the Issuer offers each of the
Holders of all outstanding Transfer Restricted Securities the opportunity
to exchange each such outstanding Transfer Restricted Security held by any
such Holder for New Senior Subordinated Notes, with Subsidiary Guarantees
thereon duly executed and delivered by the Guarantors, in the principal
amount equal to the principal amount of the Transfer Restricted Security
tendered by such Holder.
Exchange Offer Registration Statement: The Registration
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Statement relating to the Exchange Offer, including the Prospectus which
forms a part thereof.
Holders: As defined in Section 2(b) hereof.
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Indemnified Holder: As defined in Section 8(a) hereof.
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Indenture: The Indenture, dated as of January 24, 1997, among
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the Issuer, the Guarantors party thereto and Marine Midland Bank, as
trustee (the "Trustee"), pursuant to which the Notes are to be issued, as
such Indenture is amended or supplemented from time to time in accordance
with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
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Interest Payment Date: As defined in the Indenture and the
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Notes.
NASD: National Association of Securities Dealers, Inc.
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New Senior Subordinated Notes: The Issuer's 10% Senior
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Subordinated Notes due 2004 to be issued pursuant to the Indenture in the
Exchange Offer.
Notes: The Senior Subordinated Notes and the New Senior
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Subordinated Notes.
Person: An individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration Statement,
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as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
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Purchase Date: As defined in the Indenture.
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Record Holder: With respect to any Damages Payment Date relating
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to Notes, each Person who is a Holder of Transfer Restricted Securities on
the record date with respect to the Interest Payment Date on which such
Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Issuer
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relating to (a) an offering of New Senior Subordinated Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, which is filed
pursuant to the provisions of this Agreement, in each case, including the
Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
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Senior Subordinated Notes: As defined in the preamble hereto.
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Shelf Filing Deadline: As defined in Section 4 hereof.
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Shelf Registration Statement: As defined in Section 4 hereof.
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Subsidiary Guarantees: As defined in the Indenture.
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TIA: The Trust Indenture Act of 1939, as amended, and the rules
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and regulations of the Commission promulgated thereunder.
Transfer Restricted Securities: Each Senior Subordinated Note,
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until the earliest to occur of (a) the date on which such Senior
Subordinated Note is exchanged in the Exchange Offer and entitled to be
resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Securities Act, (b) the date on
which such Senior Subordinated Note has been effectively registered under
the Securities Act and disposed of in accordance with a Shelf Registration
Statement, (c) the date on which such Senior Subordinated Note is
distributed to the public pursuant to Rule 144 under the Securities Act by
a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein on or prior to such sale).
Underwritten Registration or Underwritten Offering: A
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registration in which securities of the Issuer are sold to one or more
investment banking firms, acting as underwriters, for reoffering to the
public.
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2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities entitled
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to the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
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deemed to be a holder of Transfer Restricted Securities (each, a "Holder")
whenever such Person owns Transfer Restricted Securities.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under
applicable law, or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with), the Company and the Guarantors
shall (i) cause to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 75 days after the
Closing Date, a Registration Statement under the Securities Act relating to
the New Senior Subordinated Notes and the Exchange Offer, (ii) use their
reasonable best efforts to cause such Registration Statement to become
effective no later than 150 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective amendments to
such Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) if applicable, a Prospectus
pursuant to Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and qualification of the New
Senior Subordinated Notes to be made under the Blue Sky laws of such
jurisdictions as are reasonably requested by the Initial Purchasers and
necessary to permit the Exchange Offer to be Consummated, and (iv) upon the
effectiveness of such Registration Statement, commence the Exchange Offer.
The Exchange Offer shall be on the appropriate form permitting registration
of the New Senior Subordinated Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of New Senior
Subordinated Notes held by Broker-Dealers as contemplated by Section 3(c)
below.
(b) The Issuer and each of the Guarantors shall cause the
Exchange Offer Registration Statement to be effective continuously and
shall keep the Exchange Offer open for a period of not less than the
minimum period required under applicable federal and state securities laws
to Consummate the Exchange Offer; provided, however, that in no event shall
such period be less than 20 business days after the date notice of the
Exchange Offer is mailed to the Holders. The Issuer and each of the
Guarantors shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Notes shall
be included in the Exchange Offer Registration Statement. The Issuer and
each of the Guarantors shall use their reasonable best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 business days thereafter (the "Consummation Deadline").
(c) The Issuer shall indicate in a "Plan of Distribution"
section to be contained in the Prospectus which shall form a part of the
Exchange Offer Registration
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Statement that any Broker-Dealer who holds Senior Subordinated Notes that
are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities
(other than Transfer Restricted Securities acquired directly from the
Issuer), may exchange such Senior Subordinated Notes pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Securities Act and must, therefore,
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of the New Senior Subordinated Notes received
by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such
"Plan of Distribution" section shall also contain all other information
with respect to such resales by Broker-Dealers that the Commission may
require in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount
of New Senior Subordinated Notes held by any such Broker-Dealer except to
the extent required by the Commission as a result of a change in policy
announced after the date of this Agreement.
The Issuer and each of the Guarantors shall use their reasonable best
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales of
New Senior Subordinated Notes acquired by Broker-Dealers for their own accounts
as a result of market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as announced from
time to time, for a period of one year from the date on which the Exchange Offer
Registration Statement is declared effective.
The Issuer shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
one-year period in order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Issuer is not required to
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file an Exchange Offer Registration Statement or to consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), or (ii) any Holder of Transfer Restricted
Securities that is a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) or an "accredited investor" (as defined in
Rule 501(A)(1), (2), (3) or (7) under the Securities Act) shall notify the
Issuer within 20 business days following the Consummation of the Exchange
Offer (A) that such Holder is prohibited by applicable law or Commission
policy from participating in the Exchange Offer, or (B) that such Holder
may not resell the New Senior Subordinated Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) that such
Holder is a Broker-Dealer and holds Senior
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Subordinated Notes acquired directly from the Issuer or one of its
affiliates, then the Issuer and each of the Guarantors shall use their
reasonable best efforts to:
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act,
which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "Shelf
Registration Statement") on or prior to the earliest to
occur of (1) the 30th day after the date on which the
Issuer determines that it is not required to file the
Exchange Offer Registration Statement, (2) the 30th day
after the date on which the Issuer receives notice from
a Holder of Transfer Restricted Securities, including
without limitation from any Initial Purchaser, as
contemplated by clause (ii) above, or (3) the
Consummation Deadline if the Exchange Offer has not been
consummated, (such earliest date being the "Shelf Filing
Deadline"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted
Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof;
and
(y) cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 60th
day after the Shelf Filing Deadline.
The Issuer and the Guarantors shall use their reasonable best efforts to
keep such Shelf Registration Statement continuously effective, supplemented
and amended as required by the provisions of Sections 6(b) and (c) hereof
to the extent necessary to ensure that it is available for resales of Notes
by the Holders of Transfer Restricted Securities entitled to the benefit of
this Section 4(a), and to ensure that it conforms with the requirements of
this Agreement, the Securities Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of at least
three years following the Closing Date or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Shelf
Registration Statement shall have been sold.
(b) Provision by Holders of Certain Information in Connection
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with the Shelf Registration Statement. No Holder of Transfer Restricted
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Securities may include any of its Transfer Restricted Securities in any
Shelf Registration Statement pursuant to this Agreement unless and until
(i) such Holder furnishes to the Issuer in writing, within 15 days after
receipt of a request therefor, such information as the Issuer may
reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No
Holder of Transfer Restricted Securities shall be entitled to liquidated
damages pursuant to Section 5 hereof unless and until such Holder shall
have used its reasonable best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Issuer all
information required to be disclosed in order to
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make the information previously furnished to the Issuer by such Holder not
materially misleading.
5. Liquidated Damages.
If (a) any of the Registration Statements required by this Agreement
is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (b) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (c) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within two business days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event
referred to in clauses (a) through (d), a "Registration Default"), the Issuer
and the Guarantors hereby jointly and severally agree to pay liquidated damages
to each Holder of Transfer Restricted Securities with respect to the first 90-
day period immediately following the occurrence of such Registration Default, in
an amount equal to $.05 per week per $1,000 principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues. The amount of the liquidated damages
payable to any Holder of Transfer Restricted Securities shall increase by an
additional $.05 per week per $1,000 in principal amount of Transfer Restricted
Securities held by such Holder with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
liquidated damages of $.25 per week per $1,000 principal amount of Transfer
Restricted Securities. All accrued liquidated damages shall be paid to Record
Holders by wire transfer of immediately available funds or by federal funds
check on each Damages Payment Date, as provided in the Indenture. Following the
cure of all Registration Defaults relating to any particular Transfer Restricted
Securities, the accrual of liquidated damages with respect to such Transfer
Restricted Securities will cease.
All obligations of the Issuer and the Guarantors in the preceding
paragraph to pay liquidated damages, together with interest on any overdue
liquidated damages as provided in the Indenture, that are outstanding with
respect to any Transfer Restricted Security at the time such security ceases to
be a Transfer Restricted Security shall survive until such time as all such
obligations with respect to such Transfer Restricted Security shall have been
satisfied in full.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with
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the Exchange Offer, the Issuer and each of the Guarantors shall comply with
all of the provisions of Section 6(c) below, shall use their reasonable
best efforts to effect such exchange to permit the sale of Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and shall comply with all of the following
provisions:
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(i) If in the reasonable opinion of counsel to the
Issuer there is a question as to whether the Exchange Offer is
permitted by applicable law, the Issuer and each of the Guarantors
hereby agree to seek a no-action letter or other favorable decision
from the Commission allowing the Issuer and the Guarantors to
Consummate an Exchange Offer for such Senior Subordinated Notes. The
Issuer and each of the Guarantors hereby agree to pursue the issuance
of such a decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect a change
of Commission policy. The Issuer and each of the Guarantors hereby
agree, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared
by counsel to the Issuer and the Guarantors setting forth the legal
bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission staff of
such submission.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Issuer or
a Guarantor, prior to the date on which the Exchange Offer is
consummated, a written representation to the Issuer and the Guarantors
(which may be contained in the letter of transmittal contemplated by
the Exchange Offer Registration Statement) to the effect that (A) it
is not an affiliate of the Issuer, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the New Senior
Subordinated Notes to be issued in the Exchange Offer and (C) it is
acquiring the New Senior Subordinated Notes in its ordinary course of
business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Issuer's and the
Guarantors' preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder
using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on
the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co.,
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Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
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(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement
containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K if the resales are of New
Senior Subordinated Notes obtained by such Holder in exchange for
Senior Subordinated Notes acquired by such Holder directly from the
Issuer.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Issuer and the Guarantors shall provide a
supplemental letter to the
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Commission (A) stating that the Issuer and the Guarantors are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available
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May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991)
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and, if applicable, any no-action letter obtained pursuant to clause
(i) above and (B) including a representation that the Issuer and the
Guarantors have not entered into any arrangement or understanding with
any Person to distribute the New Senior Subordinated Notes to be
received in the Exchange Offer and that, to the best of the Issuer's
and the Guarantors' information and belief, each Holder participating
in the Exchange Offer is acquiring the New Senior Subordinated Notes
in its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of
the New Senior Subordinated Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
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Registration Statement, the Issuer and each of the Guarantors shall comply
with all the provisions of Section 6(c) below and shall use their
reasonable best efforts to effect such registration to permit the sale of
the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto
the Issuer and each of the Guarantors will as expeditiously as possible
prepare and file with the Commission a Registration Statement relating to
the registration on any appropriate form under the Securities Act, which
form shall be available for the sale of the Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
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Statement and any Prospectus required by this Agreement to permit the sale
or resale of Transfer Restricted Securities (including, without limitation,
any Registration Statement and the related Prospectus required to permit
resales of Notes by Broker-Dealers), the Issuer and the Guarantors shall:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements (including, if required by the
Securities Act or any regulation thereunder, financial statements of
the Guarantors) for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Issuer
and the Guarantors shall file promptly an appropriate amendment to
such Registration Statement, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either clause (A)
or (B), use their reasonable best efforts to cause such amendment to
be declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
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(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement
as may be necessary to keep the Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been
sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Securities Act
in a timely manner; and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to confirm such
advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement under
the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of any additions
to or changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or
other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the
Issuer and each of the Guarantors shall use their reasonable best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish to each of the selling Holders and each of
the underwriter(s), if any, before filing with the Commission, copies
of any Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after
the initial filing of such Registration Statement), which documents
will be subject to the review of such Holders and underwriter(s), if
any, for a period of at least five business days, and the Issuer and
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the Guarantors will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which a selling Holder of Transfer Restricted Securities
covered by such Registration Statement or the underwriter(s), if any,
shall reasonably object within five business days after the receipt
thereof. A selling Holder or underwriter, if any, shall be deemed to
have reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission;
(v) promptly prior to the filing of any document that
is to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the selling Holders and
to the underwriter(s), if any, make representatives of the Issuer and
the Guarantors available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection
by the selling Holders, any underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney
or accountant retained by such selling Holders or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Issuer and the Guarantors and cause
the officers, directors, managers and employees of the Issuer and the
Guarantors to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to
its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly to incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the purchase
price being paid therefor and any other terms of the offering of the
Transfer Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Issuer or the Guarantors is
notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by
the Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Notes covered thereby or the underwriter(s), if
any;
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(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request; the
Issuer and the Guarantors hereby consent to the use of the Prospectus
and any amendment or supplement thereto by each of the selling Holders
and each of the underwriter(s), if any, in connection with the
offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(xi) enter into such agreements (including an
underwriting agreement), and make such representations and warranties,
and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to any Registration Statement contemplated by this
Agreement, all to such extent as may be reasonably requested by the
Initial Purchasers or by any Holder of Transfer Restricted Securities
or underwriter in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Issuer and the
Guarantors shall:
(A) upon written request, furnish to each selling
Holder and each underwriter, if any, in such substance and scope
as they may request and as are customarily made by the Issuer and
the Guarantors to underwriters in primary underwritten offerings,
upon the date of the Consummation of the Exchange Offer and, if
applicable, the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the
case may be, signed by (y) the Chairman of the Board or the
President and (z) the Chief Financial Officer of each of the
Issuer and the Guarantors, confirming, as of the date
thereof, the matters set forth in paragraph (s) of Section 7
of the Purchase Agreement;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the
case may be, of counsel for the Issuer and the Guarantors,
covering the matters set forth in paragraph (e) of Section 7
of the Purchase Agreement and such
12
other matters as such parties may reasonably request, and in
any event including a statement to the effect that such
counsel has participated in conferences with officers and
other representatives of the Issuer and the Guarantors,
representatives of the independent public accountants for
the Issuer and the Guarantors, representatives of the
underwriters, if any, and the counsel for the and
underwriters, if any, in connection with the preparation of
such Registration Statement and the related Prospectus and
have considered the matters required to be stated therein
and the statements contained therein, although such counsel
has not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises
that, on the basis of the foregoing (relying as to
materiality to a large extent upon facts provided to such
counsel by officers and other representatives of the Issuer
and the Guarantors and without independent check or
verification), no facts came to such counsel's attention
that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became
effective, and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation,
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
that the Prospectus contained in such Registration Statement
as of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the date
of Consummation, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order
to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may state
further that such counsel assumes no responsibility for, and
has not independently verified, the accuracy, completeness
or fairness of the financial statements, notes and schedules
and other financial and accounting data included in any
Registration Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated as of
the date of Consummation of the Exchange Offer or the date
of effectiveness of the Shelf Registration Statement, as the
case may be, from the Issuer's independent accountants, in
the customary form and covering matters of the type
customarily covered in comfort letters received by
underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to paragraph (j) of
Section 7 of the Purchase Agreement, without exception;
13
(B) set forth in full or incorporate by reference
in the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to all
parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Issuer or the Guarantors pursuant
to this clause (xi), if any.
If at any time the representations and warranties of the
Issuer and the Guarantors contemplated in clause (A)(1) above cease to
be true and correct in any material respect, the Issuer or the
Guarantors, as the case may be, shall so advise the Initial Purchasers
and the underwriter(s), if any, and each selling Holder promptly and,
if requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s) may reasonably request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the Shelf Registration Statement; provided, however, that neither the
Issuer nor any of the Guarantors shall be required to register or
qualify as a foreign corporation where it is not now so qualified or
to take any action that would subject it to the service of process in
suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it
is not now so subject;
(xiii) issue, upon the request of any Holder of Senior
Subordinated Notes covered by the Shelf Registration Statement, New
Senior Subordinated Notes, having an aggregate principal amount equal
to the aggregate principal amount of Senior Subordinated Notes
surrendered to the Issuer by such Holder in exchange therefor or being
sold by such Holder; such New Senior Subordinated Notes to be
registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Senior
Subordinated Notes held by such Holder shall be surrendered to the
Issuer for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities
to be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any,
may request
14
at least two business days prior to any sale of Transfer Restricted
Securities made by such underwriter(s);
(xv) use their reasonable best efforts to cause the
Transfer Restricted Securities covered by the Registration Statement
to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition
of such Transfer Restricted Securities, subject to the proviso
contained in clause (xii) above;
(xvi) if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, prepare a supplement
or post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
Initial Purchasers or any other Holder of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a
form eligible for deposit with the Depository Trust Company;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use their reasonable best
efforts to cause such Registration Statement to become effective and
approved by such governmental agencies or authorities as may be
necessary to enable the Holders selling Transfer Restricted Securities
to consummate the disposition of such Transfer Restricted Securities;
(xix) otherwise use their best efforts to comply with all
applicable rules and regulations of the Commission, and, in the case
of the Issuer to make generally available to its security holders, as
soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) for the twelve-
month period (A) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm or
best efforts Underwritten Offering or (B) if not sold to underwriters
in such an offering, beginning with the first month of the Issuer's
first fiscal quarter commencing after the effective date of the
Registration Statement;
(xx) cause the Indenture to be qualified under the TIA
not later than the effective date of the first Registration Statement
required by this
15
Agreement, and, in connection therewith, cooperate with the Trustee
and the Holders of Notes to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use their reasonable best
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to
be so qualified in a timely manner; and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Issuer of the existence
of any fact of the kind described in Section 6(c)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the applicable Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing
(the "Advice") by the Issuer that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Issuer,
each Holder will deliver to the Issuer (at the Issuer's expense) all
copies, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Transfer Restricted Securities that was
current at the time of receipt of such notice. In the event the Issuer
shall give any such notice, the time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder
covered by such Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof or shall have received the Advice.
7. Registration Expenses.
(a) All expenses incident to the Issuer's and the Guarantors'
performance of or compliance with this Agreement will be borne by the
Issuer and the Guarantors, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration and
filing fees and expenses (including filings made by any Initial Purchaser
or Holder with the NASD (and, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel that may be required by
the rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing certificates for the New
Senior Subordinated Notes to be issued in the Exchange Offer and printing
of Prospectuses), messenger and delivery services and telephone; (iv) all
fees and disbursements of counsel for the Issuer and the Guarantors and,
subject to Section 7(b) below, the Holders of Transfer Restricted
Securities; and (v) all fees and disbursements of independent certified
public accountants of the Issuer and the
16
Guarantors (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Issuer and the Guarantors will, in any event, bear their
respective internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Issuer or the
Guarantors.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the Issuer
and the Guarantors will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities being tendered in the Exchange Offer and/or
resold pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or registered pursuant to the Shelf
Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Xxxxxxx Xxxx &
Xxxxxxxxx or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.
8. Indemnification and Contribution.
(a) Each of the Issuer and each of the Guarantors, jointly and
severally, agrees to indemnify and hold harmless (i) each Holder and (ii)
each person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any Holder (any of the
Persons referred to in this clause (ii) being referred to as a "controlling
person") and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any
person referred to in clause (i), (ii), or (iii) may hereinafter be
referred to as an "Indemnified Holders"), from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof to
which such Indemnified Holder may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Issuer and the Guarantors shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission made in any
Registration Statement or Prospectus or in any amendment or supplement
thereto in reliance upon and in conformity with written information
furnished to the Issuer through the Holders by or on behalf of any Holder
(or its related Indemnified Holder) specifically for inclusion therein. The
foregoing
17
indemnity agreement is in addition to any liability which the Issuer and
the Guarantors may otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and
hold harmless each of the Issuer, the Guarantors, their respective
directors and officers and each person, if any, who controls the Issuer or
any of the Guarantors within the meaning of the Securities Act or the
Exchange Act, from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof, to which the Issuer, any
Guarantor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus, or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Issuer through the Holders by or on behalf of
any Holder or its related Indemnified Holder specifically for inclusion
therein, and shall reimburse the Issuer or any Guarantor or their
respective director, officer or controlling person, as the case may be, for
any legal or other expenses reasonably incurred by the Issuer, such
Guarantor, director, officer or controlling person, as the case may be, in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Holder may otherwise have to the Issuer, the Guarantors or any
such director, officer or controlling person. In no event shall the
liability of any selling Holder hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale of
Transfer Restricted Securities giving rise to such indemnification
obligation.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such
failure and, provided further, that the failure to notify the indemnifying
party pursuant to this Section 8 shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section
8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than
18
reasonable costs of investigation; provided, however, that any indemnified
party shall have the right to employ separate counsel in any such action
and to participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying
party in writing, (ii) such indemnified party shall have been advised by
such counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii)
the indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (and local counsel) at
any time for all such indemnified parties, which firm shall be designated
in writing by the Holders of a majority in principal amount of Notes
entitled to such indemnification, if the indemnified parties under this
Section 8 consist of any Holder or any of their related Indemnified
Holders, or by the Issuer, if the indemnified parties under this Section 8
consist of any of the Issuer or any Guarantor or any of their respective
directors, officers or controlling persons. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 8(a) and 8(b),
shall use its best efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Issuer and the Guarantors
on the one hand and any Holder on the other from such Holder's sale of
Transfer Restricted Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect the relative fault of the Issuer and the Guarantors
on the one hand and such Holder on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Issuer and the Guarantors on the
one
19
hand and of such Holder on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Issuer and the Guarantors, on the
one hand, or such Holder, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Issuer, each Guarantor and each
Holder of Transfer Restricted Securities agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 8(d) shall be deemed to include, for purposes of this
Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), none
of the Holders (or any of their related Indemnified Holders) shall be
required to contribute any amount in excess of the amount by which the
proceeds received by such Holder with respect to the Notes exceeds the
amount of any damages which such Holder has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11 of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute as provided in
this Section 8(d) are several in proportion to the respective principal
amount of Notes held by each of the Holders hereunder and not joint.
9. Rule 144A.
Each of the Issuer and the Guarantors hereby agrees with each Holder,
for so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
20
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Issuer.
12. Miscellaneous.
(a) Remedies. The Issuer and each Guarantor agree that
--------
monetary damages (including the liquidated damages contemplated hereby)
would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agree to waive
the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. Each of the Issuer and the
--------------------------
Guarantors will not on or after the date of this Agreement enter into any
agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. Except pursuant to the Stockholders Agreement (as
defined in the Purchase Agreement), neither the Issuer nor any Guarantor
has previously entered into any agreement granting any registration rights
with respect to its securities to any Person. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Issuer's securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Issuer and each
-------------------------------
Guarantor will not take any action, or permit any change within its control
to occur, with respect to the Notes that would materially and adversely
affect the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
----------------------
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Issuer
and the Guarantors have obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted
Securities. Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer
and that does not affect directly or indirectly the rights of other Holders
whose securities are not being tendered pursuant to such Exchange Offer may
be given by the Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities being tendered or registered.
21
(e) Notices. All notices and other communications provided
-------
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Issuer or any Guarantor:
Xxxxxx, Fargo & Co.
00000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxx
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if
mailed; when responded to, if telexed; when receipt acknowledged, if
telecopied; and on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent
such successor or assign acquired Transfer Restricted Securities from such
Holder.
(g) Counterparts. This Agreement may be executed in any number
------------
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
22
(h) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York, without
regard to the Conflict of Laws rules thereof.
(j) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected or
impaired thereby.
13. Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Issuer and the Guarantors
with respect to the Transfer Restricted Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXX, FARGO & CO., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------------------------
Name:
Title:
LOOMIS HOLDING CORPORATION, a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------------------------
Name:
Title:
XXXXXX ARMORED INC., a Texas corporation
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------------------------
Name:
Title:
XXXXX FARGO ARMORED SERVICE CORPORATION OF TEXAS,
a Texas corporation
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name:
Title:
24
XXXXX FARGO ARMORED SERVICE CORPORATION OF PUERTO
RICO, a Tennessee corporation
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Xxx X. Xxxxxxxx
---------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Associate
25
